Why Section 5 survives

This is part of the Reuters series on the future of the Voting Rights Act’s Section 5, which the Supreme Court may strike down this year. You can read other pieces in the series here.

“The smart money is on the court striking down [Section 5 of the Voting Rights Act] as an improper exercise of congressional power,” Rick Hasen has warned in his introduction to this forum. That bet is a poor one.

The “experts” may well be proven wrong ‑ as they were in 2009 when the Supreme Court found no reason to rush into a constitutional judgment on the constitutionality of pre-clearance. “Our usual practice,” Chief Justice John Roberts said then, “is to avoid the unnecessary resolution of constitutional questions.” And that is just what the court did.

Today, however, those worried about the future of the Voting Rights Act nervously point to a remark by the chief justice in a 2006 congressional redistricting case. “It is a sordid business,” Roberts said, “this divvying us up by race.”

The remark suggested race-driven maps would not survive another review of Section 5’s constitutionality, and yet the enforcement of the pre-clearance provision has long involved race-conscious districting. To forbid “divvying up” is to insist that the Justice Department and the courts craft very different remedies for electoral discrimination than the familiar ones ‑ though a commitment to those race-based districting plans has long been a civil rights litmus test.

Spokesmen for the civil-rights community have been right to say that far fewer candidates for legislative office would have been elected had they not been protected from white competition in the safe majority-minority districts that Section 5 came to demand. But after decades of racial change, the balance between costs and benefits is no longer the simple question it was when Southern white voters would not vote for black candidates ‑ whatever their credentials.

The question of racial change has been front and center in the arguments made by Shelby County and others who support the county’s constitutional challenge to pre-clearance. And in deciding Shelby County v. Holder, the Supreme Court might focus on that question: Is Section 5 a relic from a previous era of massive disfranchisement in the South?

Alternatively, the court could leave the structure of Section 5 as enacted in 1965 intact and target the provision’s 2006 amendments, which increased its vulnerability to constitutional challenge. The amendments revise the definition of discriminatory purpose and implicitly demand that states (to an even great degree than before) engage in constitutionally problematic race-based districting.

Will the court in the Shelby case focus on those 2006 constitutionally problematic amendments, as I believe it should? We court watchers have no idea.

Reuters has asked: If Section 5 is declared unconstitutional, what should come next? The answer depends on precisely what the court has to say.

But those who are fearful that a majority of justices will agree that Section 5 is yesterday’s emergency legislation might think about the following question: Will Justice Anthony Kennedy (the pivotal vote) want banner headlines in the mainstream media that, however misleadingly, read, “Court declares VRA [Voting Rights Act] to be unconstitutional”?

The “smart money,” I believe, will bet that the answer is no. And Section 5, in some form, will survive.

The 2006 amendments certainly made Section 5 worse, but even without them Section 5 is unconsitutional in 2013. For example, the original version includes the same “effects” test, which is beyond Congress’s authority to enact, and which enables the principal (and pernicious) purpose for which the act is currently used, namely the creation of racially gerrymandered and segregated voting districts (which Abigail Thernstrom has long — and brilliantly and correctly — decried).

Here’s why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court: http://www.pacificlegal.org/opeds/Overtu rn-unconstitutional-Voting-Rights-Act